Is IP another bubble about to burst? A view from another civilization. | Opensource.com

About the author

Venkatesh Hariharan (Venky) - Venkatesh Hariharan is Corporate Affairs Director (Asia-Pacific) at Red Hat. In this role, he works with industry, academia, government and the community to accelerate the growth of the global open source movement. In 2006, he was awarded the "Indian Open Source Personality of the Year" by the organizers of Linux Asia 2006.
Hariharan is a former Executive Editor of Express Computer and the first
Indian to be selected for the prestigious Knight Science Journalism
Fellowship (1998-99) at

Is IP another bubble about to burst? A view from another civilization.

As a child growing up in India, one of the first things I learned is a hymn to Saraswati, the Goddess of Knowledge, which says that:

Wonderful is your gift of knowledgethe more we share, the more it growsthe more we hoard it, the more it diminishes

As a grown-up living in a globalized world, I am constantly bombarded by the the term, “intellectual property.”

Policy makers keep saying that India should create more IP. Countless seminars extol the virtues of IP even as patents are granted for “Method for swinging on a swing,” "Method for Concealing Partial Baldness." In the computer industry, patents are routinely granted for things that are obvious and have been known for years. Things have come to such a pass that even an industry veteran like Andy Grove was forced to say that, “The true value of an invention is its usefulness to the public. Patents themselves have become products. They're instruments of investment traded on a separate market, often by speculators motivated by the highest financial return on their investment....

“The patent product brings financial derivatives to mind. Derivatives have a complex relationship with an underlying asset. While there's nothing wrong with them in principle, their unfettered use has damaged the financial services industry and possibly the entire economy."

“Do these patent instruments put us on a similar road? I fear our patent system increasingly serves those who invest in the patent products.” When a veteran like Andy Grove becomes paranoid, you and I better watch out!

Patents were meant to reward innovation, so the question is, "How did we lose our way?"

The current model of trying to "propertize," "privatize" and "commoditize" knowledge comes from a very mercantile, reductionist model of treating knowledge. That may be OK for other countries, which have "intellectual propertized" their knowledge and hold the balance of power in IP Rights, but not for India which has had a long, rich tradition of free knowledge cultures like yoga, ayurveda, mathematics and many other disciplines. It would not be far-fetched to say that many Indian traditions place a moral imperative on sharing knowledge.

One of my favorite stories illustrates the importance accorded to the sharing of knowledge. After the brutal battle of Kalinga, the Emperor Ashoka was so overcome with remorse that he renounced bloodshed and embraced Buddhism. As part of his penance, Ashoka went to monasteries across the country. At each monastery, he would leave munificent donations of gold coins. At one monastery, the emperor left behind one solitary gold coin. When his perplexed followers asked him to explain, Ashoka said that the abbot of the monastery was a great man but he did not share his knowledge with others.

This is a deep-seated ethos that is thousands of years old. This is the ethos that created open knowledge traditions like yoga, ayurveda etc, that are freely used by all. However, when India seeks to use "their" "intellectual property" (allopathic medicine, software and business method patents etc.) we are told, "pay up or else...." Talk about an unequal exchange!

The contrast is best illustrated by what happened with Bikram Yoga taught by celebrity yoga teacher, Bikram Chowdhury who makes a fortune teaching yoga to Americans. Bikram copyrighted a series of 26 postures and two breathing exercises practiced in a room heated upto 105 degrees Fahrenheit. Note that Yoga is a body of knowledge which has been free from copyrights, patents and "intellectual property" for more than 2000 years. When asked why, Bikram said that he sought legal protection because "it's the American way."

Each society evolves systems that suit its own needs. Most of India's traditions of knowledge spring forth from a spiritual base whereas America's treatment of knowledge has a mercantile bias. This is not to pass a value judgment on either. The problem arises when, in a globalizing society the two systems clash and are unable to harmonize with each other.

Sadly most of India's thinking around legal protection of knowledge has been "derivative" in nature, a shoddy cut and paste job from the "mature IP systems" of the West. However, as the Bilski case shows, even these "mature IP systems" are having second thoughts on how they treat knowledge, or in this specific case, business methods. As I have argued in my previous blog entry, "The Practical Problem with Software Patents," the litigation-ridden path followed by US in granting software and business method patents is something India must avoid at all costs.

I could go on and on, but let me just end with one small piece of evidence. As I mentioned earlier, I have grown up in an Indian tradition that believes that knowledge grows by sharing. Does this wisdom hold true in the Internet era?

In September 1991, Linus Torvalds released 10,000 lines of code for building an operating system, under the General Public License. The GPL license encouraged people to take this 10,000 lines of code, modify it and share the resulting improvements with the rest of the world. A recent study by the Linux Foundation estimated that the code base for the Fedora 9 Linux distribution is now 204 million lines of code!

This is one of the finest examples of Collaborative Innovation that has been made possible by the growth of the Internet. With 1.4 billion people connected to the Internet and another 600 million set to join up in the next two years, the Internet is the greatest collaborative platform in the history of mankind. The attempt to "propertize" knowledge in the Internet era is doomed to fail. Instead, we will see knowledge returning to its rightful place in the commons and the open source principles of collaboration, community and the shared ownership of knowledge being applied to thousands of disciplines. As the commercial distributions of Linux demonstrate, even when knowledge lives in the commons, it is possible to build profitable business models around it.

When we look back on our times, we may find that the term, "Intellectual Property" has taken its place along side another archaic term, "Horseless Carriage." Both were attempts to impose metaphors of the past on the future. And the folly of our times is that we treat inexhaustible resources like knowledge as finite resource and treat finite resources like oil and forests as infinite resources. The sooner we turn these attitudes around, the better it will be for the future of mankind.

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About the author

Venkatesh Hariharan (Venky) - Venkatesh Hariharan is Corporate Affairs Director (Asia-Pacific) at Red Hat. In this role, he works with industry, academia, government and the community to accelerate the growth of the global open source movement. In 2006, he was awarded the "Indian Open Source Personality of the Year" by the organizers of Linux Asia 2006.
Hariharan is a former Executive Editor of Express Computer and the first
Indian to be selected for the prestigious Knight Science Journalism
Fellowship (1998-99) at

114 Comments

Some very eloquent and intelligent posts here regarding property law. As a medical professional, I see echoes in this conversation of the great current debate regarding patent law as applied to the discovery of human gene sequences. A short time ago, various parties were working furiously to be the first to claim they had finally mapped the entire human genome. On one side were publicly funded groups who were mandated to publicize their findings as they proceeded. On the other side were privately backed groups who were under no such obligation to publicize anything to anyone except their financial benefactors.

Both sides knew full well what was at stake. If the publicly funded groups (MIT, for example) won the race, the privately funded groups would not be able to license access to their findings. On the other hand, if the privately funded groups won the race, the discovered information would be provided to those prepared to pay for it, and agree to potentially complex terms, thereby discouraging/suffocating much desperately needed development. Note: The privately funded groups did not hesitate to utilize all available research that was pouring out of the efforts of the publicly funded groups.

In the end, the race was declared a tie, essentially resulting in a horse designed by a committee. At this time, the large pharmaceutical companies with enormous resources, who funded their private groups' research, own most of the "patents". One can question the right of anyone to claim ownership of a group of molecules discovered within the human genome. Do your genes belong to someone else? Did these researchers invent these genes? Mind you, these patents are not for processes or technology developed during the race, but simply, and plainly, for the genes themselves.

Not withstanding the arguments people of faith might make about the Creator being the only inventor with a right to claim invention ownership in this case, these appear to be silly questions. However, in the effort to promote and reward those who poured enormous time, effort, and funds into this project, our patent system has apparently answered "yes" to both questions. Some would argue that this is equivalent to someone successfully filing a patent on an individual's fingerprint. But here we are.

The upshot: An enormous amount of urgently needed genetic research is either not being undertaken because of fear of treading on the toes of some unknown party that has laid claim to a group of genes, or in some cases, the research moves forward, painfully slowly, as patent issues (royalties, etc.) are dealt with. Our patent system is intent on making sure the owners of these gene sequences do not go unrewarded for their efforts. To do so might discourage further research leading to similar discoveries.

So without taking a side on this issue (in this forum), this writer would simply ask; who among you has not had their life painfully touched by cancer, or other genetically related diseases? Are you comfortable with this situation? How many of you have children who have been diagnosed with a genetically related terminal disease, only to be told by frustrated providers that a cure is close at hand but at the moment, promising research for this issue is currently tied up in the court system due to patent infringement (property rights) lawsuits?

Perhaps this will help explain the reason for our disagreements. My specific concern is more with software patents because it converts methods that could have been freely practiced by software developers into private property. To me, these are things that should be in the "knowledge commons" and freely available to everyone. Instead of going into details here, let me point you to my blog entry titled, "the Practical problem with software patents" at:

I'd also like to add that most of this article is not really connected to copyrights and trademarks. Perhaps, I should have been more explicit about it. Thanks for the gene patenting link. I look forward to reading it at the earliest.

Thank you Contrarian, for the link to this excellent article. Hopefully, narrowing claims to "only copies made from their original copy of the gene sequence" will in fact become the law of the land in this regard. Seems like a reasonable solution in this instance. Some of the readers here may also find: "DNA - The Secret of Life" by James D. Watson (co-discoverer with Crick of the dbl. helix) to provide an interesting, "insiders" view of the research and discovery process, complete with human foibles and legal entanglements that developed, and are still being wrestled with by the patent system. The parallels between patent issues involving genetics and Open-source issues are interesting to this ex-IT, now medical field professional. Thanks again.

Many of the comments above are interesting and well thought-out but rather overlook the point that IP is not just pure knowledge. It also covers branding and copyright. In fact, MOST IP is connected with things which are not inventions. The problem that I perceive is that too many people are confusing the concept of knowledge with the bread and butter work of implementation.

As it happens, I believe strongly in open source and have created and contributed to several projects, but I also believe that individuals, institutions and corporations have the right to protect their own interests in retaining and controlling the rights to use the results of their labors.

I also think that the writer and others confuse the idea that knowledge should not be restricted with the idea that knowledge is somehow "free". In fact, obtaining knowledge can be very expensive indeed, for example the cost of building something like a super-collider! There's a major difference between placing information in the public domain (something, by the way, that almost no open-source project does) and restricting access to that information by making it private or secret.

If an individual spends months or years creating something of value to you, then you should expect that they need to be reasonably compensated. If you take the product of their hard work from them and disseminate it on the Internet for nothing then you are stealing from them as surely as if you broke into their house and stole the food from their table.

You have my complete agreement. Your points all well taken, and appreciated by all (I hope). The parallel I pointed out was a case where knowledge was, in large part, paid for by public funding. It could be argued that the theft in this case (genetics) was that of privately funded groups taking publicly funded research results, with the end result that much of that data was no longer available in a practical sense, to those who paid for it, and many more who will literally pay with their lives.

There were at least two different forms of incentive occurring to encourage the various research groups to speed their work. 1.) Professional competition, spurred to some extent by vanity/ego, and 2.) monetary gain. No doubt, the public institutions were essentially competing for future public funding.

My concern with the medical parallel, is how to avoid patenting something that has been discovered, rather than created, while providing reward to those who richly deserve it through their efforts. It seems our legal system is doing its best to muddle through these questions as well as it can, given what it has to work with (previous precedent, etc.). This parallel (Genetics), like most analogies, only goes so far.

It seems so rare to see truly rational discussions and debates on the web, that most of us don't even read these things any more, having quickly tired of adolescent name calling and such.

My plea to all of you who are contributing to this current discussion is to please continue with the intelligent , thoughtful, and considerate input, so that others will be drawn into the discussion to learn and share. This is so refreshing. Please carry on!

Sadly, the great Indian tradition of free knowledge was not practised in many celebrated cases. The tribal boy Eklavya (story in Mahabharata, the Indian epic) became proficient in archery drawing inspiration from a person whom he considered to be his guru, the guru, sadly, considered himself to be a teacher to princes only. As part of his teaching fee(irony was that he never imparted any lessons) he asked for the thumb of the boy who gladly gave it and forewent his claim to be the greatest archer of them all. This was an assertion of restriction over knowledge.
The human manifestation of God on the Earth, Lord Ram, cut of the head of a low-born Shambuk because he recited the Vedas, the divine books which were meant for the ears of only the high-born. Same restriction but of a much more drastic kind.
The prescribed punishment for a low-born who heard the sound of the Vedas was to have molten lead poured into his/her ears.
As such, while free access to knowledge was a normative assertion in ancient India, it was not really translated into an existential reality. With lack of codified system of justice, a common law system that relied on the wisdom (or lack of it) of the local potentate was not really the best place to seek free access to knowledge.
Yet, this does not detract from the fact that indeed it was considered the highest form of charity to give knowledge freely. But charity counts for something only in the other world. This one is the material world where prosperity is what is desirable.

Madhukar, for me, one important takeaway from your post is that while ideals are important, the practice of these ideals in day-to-day life is also equally important. The manner in which the ideals of sharing knowledge were subverted in ancient India to create the divisive caste system, should serve as a cautionary tale, not just for us Indians, but also for the world. As you (indirectly) point out, this system was based on excluding access to knowledge, for the so-called lower castes. Thousands of years later, we Indians still live with the repercussions of this deeply inequitable system. Today, thanks to the Internet, we can share knowledge faster and far more easily than at any other point in history. However, exclusionary tools like proprietary standards for data interchange, patents on methods and processes for writing software etc, are trends that are deeply antithetical to the openness and vitality of the Internet. We must not repeat the mistakes of history. More articles on open standards are on my blog at www.osindia.blogspot.com

Buddhism is full of examples of gurus withholding knowledge. The justification, however, is that they are going to impart "wisdom" as opposed to knowledge, and that this wisdom can naturally only be gained through sacrifice of the ego (which of course often translates to the students' time/money) to others.

Then again, open source software is a bit like these 'secret' teachings of eastern religion -- in principle available to anyone with the desire and motivation to learn, but not without a great investment of energy and openness. Linux is freely available, but beyond the grasp of those without the dedication to understand it or participate in the open model.

Generosity creates wealth. Actively intending to limit the distribution of open source software to certain countries will increase poverty in the US and around the world.

"The best anti-poverty program around is a world class education".

And we would intend to deny certain countries the world-class education that open source provides? We are going to invest in restrictions? It is counter-productive to spend time building restrictions to knowledge that is self-secret, and should be left available to anyone smart enough to participate.

I like your contribution to this discussion very much. And I wholeheartedly agree that good karma and spiritual rewards flows to those who freely give of themselves and freely offer the fruits of their labors to others. All benefit. My position is only that society has no right to require such sacrifices.

No right to require, I agree. If society requires sacrifice, then the individual who shares unwillingly is forced to have greedy thoughts and does not gain the good karma or the benefits of generosity.

I am saying that society has no right to restrict generosity, such as Americans' ability to serve FOSS software to anyone who desires it.

I certainly agree that society has no right to restrict the distribution of free and open source software, subject to the conditions placed on its use -- such as the gnu requirements that all copies carry a copyright notice and that modifications [if not distributed] may remain secret.

If your point is that there's much public domain code in patented and/or copyrighted computer programs, that's certainly true [though much less true for the former than the latter]. The long, venerable, and [admittedly] socially beneficial history of programmers sharing code has resulted in it being impossible in many instances to determine who wrote what -- and, for us legal beagles, who owns what.

But copyright law has rules for extracting from protection the unprotected elements of that which is claimed to be under copyright and then using only the remainder to determine if there's been an infringement. Which is certainly not a clean or very efficient system, but it does balance the rights of the public along with the rights of the code-creator.

Sorry, I was not thinking of patents so much as SourceForge's firewalling of certain countries' access to internationally created free software, as if it is US Intellectual Property that can be restricted as an export.

Wow. Thanks for the link. It will be very interesting how the open source community responds.

On the one hand, why should open source developers expend the resources to fight the restrictions? I don't see the economic benefit.

On the other hand, the restrictions certainly impede [at least somewhat] further development of the software and its legitimate use by residents in the countries where access is prohibited. We already have a mature body of law dealing with export controls on technology. I don't know enough about that law to even think through whether restrictions on open source software is consistent with that law.

This is a perfect example of the complications that arise from the absence of national borders in cyberspace.

Many organizations that cannot afford to support their bespoke software internally offer it to the community in the hopes of finding collaborators with an interest in, and an ability to, help support that software. It's a nice model, and it brings us all tangible business benefits, like the Internet for example.

In any case, when someone offers their ideas to the community, it's churlish for others to criticize their reasons for doing so.

"But if pleasure motivates my conduct in business affairs then I wouldn't be a very good businessman would I?"

The two issues are orthogonal. Many good businessmen are motivated by pleasure. You might as well ask, "If concern for justice motivates my conduct in plantation affairs, I wouldn't be a very good slave owner, would I?"

"Orthogonal?" Really? As in "intersecting or lying at right angles" or "statistically independent?" Using big words to sound impressive is dumb ... and silly when it simply doesn't fit.

Of course many businessmen are motivated by pleasure -- which is exactly what I said. But read on sparky. My point [and literal words] was that it's childish to seek that pleasure when someone else has to pay for it.

As for your slave owning argument-by-analogy why argue that way? State your facts, fashion a direct argument, and use it to try to persuade. Anything else is ambiguous, rhetorical garbage.

> "Orthogonal?" Really? As in "intersecting or lying at right angles" or "statistically independent?"

Statistically and conceptually independent.

> Using big words to sound impressive is dumb ... and silly when it simply doesn't fit.

It fits fine. You merely object to my English because it refutes your false claims.

> Of course many businessmen are motivated by pleasure -- which is exactly what I said.

No, SPARKY. What you SAID was that no GOOD businessman could be motivated by pleasure.

> My point [and literal words] was that it's childish to seek that pleasure when someone else has to pay for it.

That was just a non sequitur after your false claim. There is nothing childish in being motivated by pleasure -- Maslow identified self-actualization as the most mature level of motivation -- and no reason to assume someone else has to pay for it.

> As for your slave owning argument-by-analogy why argue that way?

Because it shows why you are wrong: the source of one's motivation is not what makes one a good or bad businessman, unless (as you apparently intend) you redefine "good businessman" to mean, "bad man."

> State your facts, fashion a direct argument, and use it to try to persuade.

Why? So you can decline to respond to it other than with insults, as usual...?

You write: It is the IP monopolist who requires society to sacrifice others' rights to liberty on the altar of his own greed.

Huh?

The IP monopolist [i.e., the one who creates an intellectual property] requires society to sacrifice others' rights [what others and what rights -- to the creator's creation?] to liberty [really? liberty, as in freedom to do ... what? Use what the creator created?] on the altar of his own greed [greed being, I take it, your way of characterizing the creator's desire (indeed right) to call his own creation his own and to restrict others from using it?]

You're wedded to the notion that there is no moral or legal or socially acceptable basis for intellectual property. But I've yet to hear, as a fundamental matter, why what Person X creates can be used either for fun or commercially by anyone else.

Answer specifically: What gives anyone else the right use Person's X creation?

> The IP monopolist [i.e., the one who creates an intellectual property]

Lie. The IP monopolist is the one who OWNS the property. It is GOVERNMENT that creates it. The only one who contributes anything is the originator of the relevant knowledge, ideas, expressions, etc., who neither creates the property -- which is a legal fiat issued by government -- nor, in most of the relevant cases, owns it.

> requires society to sacrifice others' rights [what others and what rights -- to the creator's creation?] to liberty [really? liberty, as in freedom to do ... what? Use what the creator created?]

All others' rights to their liberty to use what is in their own minds. Once knowledge, ideas and expressions have been published, they are in fact, if not in law, in the public domain: they exist in other people's minds than the originator's. It is only by government fiat that they can be re-privatized through the issuance of monopoly privileges that violate the liberty rights of all who would otherwise be at liberty to use them.

> on the altar of his own greed [greed being, I take it, your way of characterizing the creator's desire (indeed right) to call his own creation his own and to restrict others from using it?]

No, the IP monopolist's greed being his desire to obtain more than he needs or deserves through the uncompensated violation of others' rights. No one has a right to restrict others' use of the contents of their own minds, unless it deprives them of something they would otherwise have (privacy being the usual matter at issue).

Please stop makin' $#!+ up about what I have plainly written.

> You're wedded to the notion that there is no moral or legal or socially acceptable basis for intellectual property.

Lie. I am well aware of the legal (and consequent social) basis for IP monopoly privileges. It is exactly the same legal and social basis that property in human beings enjoyed before emancipation.

> But I've yet to hear, as a fundamental matter, why what Person X creates can be used either for fun or commercially by anyone else.

Lie. I have stated explicitly that people have a right to liberty, including the liberty to use what is in the public domain. Once knowledge, ideas or expressions exist in anyone's mind but the originator's, they are in the public domain in fact, if not in law.

> Answer specifically: What gives anyone else the right use Person's X creation?

Their right to liberty. If Person X wants to keep their creation private, let them keep it private. But if Person X expects government to re-privatize his creation for him after he has published or sold or otherwise released it into the public domain, so that it exists in the minds of other people with whom he has no contractual arrangement to preserve its private status, he is expecting to have his cake and eat it, too.

The original idea of a patent was full and open disclosure in exchange for a fixed period of control. The assumption was as Edison said, 1% inspiration, 99% perspiration. The fixed period was to motivate the perspiration. As with any system it had glaring successes and failures but it was always as an option to trade secrets which, last I heard, are more numerous than patents. No one is required to use the patent system. Reverse engineering a trade secret cannot be patented as it is by definition prior art.

Inventors are not like Buddhist monks in that no one gives them gold coins just for sitting around inventing all day. They are on their own getting reimbursement for their effort. And as the author notes, they have to do it within their own culture.

That said the patent system has gotten out of hand and particularly in the foolish application to software. Everyone has their favorite rant on a software patent. Most of them are not about the software but on what is done regardless of the software making it happen. That is not an invention. That is not an novelty. They are things you have to be a dullard not to see as obvious.

Patents are no longer to encourage beneficial novelties which are better known to the public than kept secret. They have become commodities. Patent claims are company tradegoods with attorneys as the traders. The use of these patents is no longer to introduce better products but as part of overall profit strategies.

Let us remember all of the issues of the software community can be eliminated by simply nullifying all software patents.

Copyright has always been the reasonable way to deal with software. The meaning of infringement is reasonably well established as is the concept of public domain. The latter has served the open source community well.

Lets keep patents and copyright as separate issues and deal with them separately.

I like the idea, that if I make an invention, that I can have some way of protecting that investment, in order to possibly have a financial reward. The problem arises, when a regular person would like to submit a patent, because the processes and legal "language" that surrounds creating a patent, is not for the ordinary person to tackle, therefore you need a "team" of people to help you with the patent, which again means that you need to spend a lot on money. So in effect only larger corporations stands a chance to create and really gain from the patent.

Because if you do not also spend money on protecting you patent you can loose the right to profit from it.

SO how would you suggest a way to have a system that offers some protection, so a small time inventor can benefit from a patent system??

I make my living helping small businesses with their intellectual property issues. You're completely correct that the intellectual property system [not just patents] is too complicated for the small business owner to effectively use its tools -- either offensively to create value or defensively to protect the company's assets and bottom line.

The only way to navigate the system is to learn the basics (see the links below) and then find an attorney with enough real-world experience to help you cut the wheat from the chaff and to partner -- truly partner -- with you to infuse your business with a tailored intellectual property plan.

Big picture: Smart business folks do better than less smart business folks. Which is how it should be. Smarts are needed in accounting, search engine optimization, hiring decisions, etc. -- not just intellectual property matters.

Wonderful post. A very interesting book was published in India in 1894, called The Holy Science. In it, the author, Sri Yukteswar, guru of a famous yogi who lived and taught in the West, Paramhansa Yogananda, claimed that the world was on the verge of entering a new "Age of Energy." In the last century, of course, virtually every significant invention has been driven by, or made use of energy. There's a rich array of books by Yogananda's disciple, Swami Kriyananda, in which he describes the nature of the new energy-age, and how the changeover is causing friction between two opposing attitudes: the rigid, rules-based, confining materialistic viewpoint, and a more flowing, expansive standpoint based on the spreading new energy awareness. IP-mania versus open source seems an excellent example. An interesting book about the ancient Indian theory of ages, and the ongoing transition, is Religion in the New Age, by Kriyananda (http://tinyurl.com/ydeuw9e).

There are millions of software practitioners around the world today, working in their own cultures, languages, and so forth.

At the same time, the software these people create is often used globally.

Patents do not protect inventors; patents protect those who file patents. Moreover, patents not only protect their owners from unsavoury folk who would steal their intellectual property, but from innocent people who came up with similar inventions at similar times in their unique circumstances.

It is not generally straightforward for those "innocent inventors" to prove that they were using the claimed patented IP at the same time or prior to the filing of the patent.

Are we all to begin spending as much time scrutinizing our code for patent violations as we do for bugs?

The law starts from the premise that a programmer owns the original code that he or she writes and any original compilations of pre-existing code.

If anyone does not agree w/that premise then they're operating outside our law's structure and it's incumbent upon them to either make up their own sui generis system, sit quietly on the sidelines, or uselessly rail against the legal theory of property rights.

The law has developed three wholly separate property rights systems to "protect" computer programs: trade secret, copyright, and patent.

If a programmer does not want anyone to learn or use his or her code, then the code can be maintained as a trade secret. Matter closed. This happens all the time w/stand alone programs -- but which, admittedly, does not work, at all, when the code owner wants or needs interoperability with other programs.

Computer programs are copyrightable works of authorship. Here's the answer to Monet's Chemist: in order to infringe the copyright in a computer program, the owner of that copyright must first establish [by a preponderance of the evidence] that the alleged infringer had "access" to the copyrighted work. The second infringement element is that the subsequent work must be "substantially similar" to the original. But w/o "access" creator number two is NOT an infringer -- and, in fact, is entitled to a copyright in the code that he or she created independently from creator number one [resulting in two copyrights on the same work owned by different authors].

Patent law provides a less satisfactory protection regime for computer programs because programs are algorithms which, inherently, have less rigid and definable borders than do physical objects with their various configurations [each of which may be claimed as a different embodiment of the same invention].

Within patent parlance, the first to invent an algorithm is its inventor and all those who subsequently, even independently, create the same algorithm is NOT its inventor. Laymen will object to this use of terminology as contrary to reality. But so what? ALL language is mere symbology that attempts to assign meaning to our experiences -- physical and ethereal -- with our world. Patent law vernacular has a very particular purpose not meant for general application [as does much jargon in all fields]. In short, patent law language is useful within its field. So spare me the self-righteous rants about patent law not conforming to your world experience. I frankly do not care.

The premise of US patent law is that the first to invent x is entitled to a patent on x [assuming all the patentability requirements are satisfied]. This is NOT the rule anywhere else in the world [essentially]. Everywhere else, the first to file a patent application on invention x is entitled to a patent on x. I submit that the US rule is far more consonant with the moral sensibilities of those who're commenting on this thread. The consequence of the rule elsewhere is that those with the most money can seek - and be granted -- patents on inventions [in this case, computer programs] that they did not create.

As for US patent protection, what is protected in computer programs is its functionality, not its literal lines of code. So if Program X's functionality is obvious in light existing programs then Program X is not patentable. That's reasonable. And, as was discussed in posts long ago, there are mechanisms in place for the programming community to interact with the Patent Office to ensure that it's doing its job of screening out unpatentable programs. Bitch all you want about having to take the time to interact but that's the system. Just like in the physical world, it is incumbent on property owners to protect his or her property or risk losing it to squatters via adverse possession.

"The law starts from the premise that a programmer owns the original code that he or she writes and any original compilations of pre-existing code.

"If anyone does not agree w/that premise then they're operating outside our law's structure and it's incumbent upon them to either make up their own sui generis system, sit quietly on the sidelines, or uselessly rail against the legal theory of property rights."

That is blatant question begging. The "legal theory" of property rights in code and other knowledge and ideas is exactly what is at issue, here. It is not responsive to just dismiss all arguments against the current legal implementation of property in knowledge and ideas as "useless railing."

I did not beg the question -- the question being, I take it, whether or not a programmer owns the code that he or she writes ["owns" as in having the exclusive right to use and otherwise exploit the code -- in a word, owning the code as his or her "property"].

I clearly stated that the law presumes that the programmer owns that code ... and then made clear that if a person does not agree with that presumption then he or she can make up an alternate system, not participate in any system at all, or throw stones at the property system that is already in place.

If the system that you prefer is that no one owns that code -- including its creator -- then make an argument why that system is better, and more moral, than the property system currently in place.

You guys need to be clear on whether you are talking about copyright or patents. Certainly, the programmer owns the code he wrote according to copyright law, just like a novelist. Copyright is not causing huge problems - and the free software movement depends on it. Unlike copyright, a software patent claims ownership of an infinite class of programs - few (or in the case of trolls, none) of which have even been written yet.

Software patents are what we need to get rid of. They only exist because of insane (to a non lawyer) case law that contradicts plain language (to a non lawyer) forbidding them in the original law.

There are some abuses of trademarks also, but nothing on the scale of what software patents perpetrate. I wish the trademark office would be a little more strict about not trademarking everyday words, but mostly it is just an annoyance. And you should certainly be able to own your own name (provided it is unique and not co-opting common language).

"You guys need to be clear on whether you are talking about copyright or patents."

Both.

"Certainly, the programmer owns the code he wrote according to copyright law, just like a novelist."

Question begging fallacy again.

"Copyright is not causing huge problems"

Talk about damning with faint praise! It is likely that music copyrights have contributed to the current absence of melody from popular "music."

"- and the free software movement depends on it."

No, of course it doesn't. Don't be silly. Remove copyrights, and all software is free.

"Unlike copyright, a software patent claims ownership of an infinite class of programs - few (or in the case of trolls, none) of which have even been written yet."

Just as copyright claims ownership of an infinite class of works "derived from" Harry Potter novels.

"Software patents are what we need to get rid of."

All patents are indefensible privileges.

"They only exist because of insane (to a non lawyer) case law that contradicts plain language (to a non lawyer) forbidding them in the original law."

Patents only exist because like slavery, they were a simple and convenient solution to a problem. But now we know that simple and convenient solution, like slavery, created more problems than it solved. We have better solutions. Time to use them.

"There are some abuses of trademarks also, but nothing on the scale of what software patents perpetrate. I wish the trademark office would be a little more strict about not trademarking everyday words, but mostly it is just an annoyance."

Trademark should only be granted for consumer protection, never to enable owner rent seeking.

"And you should certainly be able to own your own name (provided it is unique and not co-opting common language)."

Almost all names ARE common language, as you can verify by Googling them.

"I did not beg the question -- the question being, I take it, whether or not a programmer owns the code that he or she writes ["owns" as in having the exclusive right to use and otherwise exploit the code -- in a word, owning the code as his or her "property"]."

Claiming that is the question is precisely begging the question. The ACTUAL question is, "Can the violation of people's rights to liberty by intellectual property law be justified on moral, economic or other grounds?"

And it can't.

"I clearly stated that the law presumes that the programmer owns that code ... and then made clear that if a person does not agree with that presumption then he or she can make up an alternate system, not participate in any system at all, or throw stones at the property system that is already in place."

I choose, like the abolitionists, to oppose the uncompensated violation of people's rights by privilege.

"If the system that you prefer is that no one owns that code -- including its creator -- then make an argument why that system is better, and more moral, than the property system currently in place."

It is better because it does not prevent production, and it is more moral because it does not violate people's rights without just compensation.

"Within patent parlance, the first to invent an algorithm is its inventor and all those who subsequently, even independently, create the same algorithm is NOT its inventor. Laymen will object to this use of terminology as contrary to reality. But so what?"

So it's a lie.

"Patent law vernacular has a very particular purpose not meant for general application [as does much jargon in all fields]. In short, patent law language is useful within its field."

I.e., for rationalizing an indefensible privilege.

"So spare me the self-righteous rants about patent law not conforming to your world experience. I frankly do not care."

Bingo. You do not care that patent law is based on a bald lie, because that lie makes you a nice living.

What's the lie? That the second to create some particular code is not, in patent parlance, the "inventor" of that code? If that's the case then I assume you'd prefer that everyone who independently creates that code be labeled its "inventor."

Many words have different meanings depending on the circumstances of their use. In short, words -- which are nothing more than symbols -- are pliable. In this case, "inventor" can mean anyone who creates something [which is apparently the only meaning you ascribe to it] and it can mean anyone who creates something new [which is what it means in patent parlance].

If it will make you happy, let's call the person who first creates some particular code the "first inventor" and call the next to create that same code the "second inventor." Maybe with this terminology we can move the debate along.

As for whether patent law is "based on a bald lie" know this: in the US, second inventors are not entitled to patent whatever it is they created. Which is, I think, consistent with your world view [which I take to be that you'd prefer that even the first inventor not have the right to patent his or her code].

I think that it's more consistent with your worldview to embrace the MORE restrictive definition that patent law attaches to "inventor." Apply that definition results in less software patents.

I've forgotten why I've been posting anonymously but see no reason to do so. If you're interested you can follow my Twitter feed at http://twitter.com/ ballard_ip and can read answers that I give to IP questions at http://goo.gl/RH3fT .

"A programmer owns the original code he or she writes" - not true, I think; at least in my country, the employer of the programmer owns the code, unless specific contracts state otherwise.

"the first to invent x is entitled to a patent on x" - also, not true, I think; the first who asserts ownership to the invented thing x is entitled to a patent on x. Else why would IBM, etc own patents? IBM didn't invent the things; employees of IBM did. Or, being ignorant of how this really works, perhaps the IBM employee gets the patent and then assigns or shares the right somehow with IBM. Or, perhaps I'm completely wrong and IBM, Microsoft, etc don't really own any patents, their employees do.

(Not to pick on IBM overmuch, they've seen value in supporting open source models too).

"those with the most money can seek - and be granted - patents on inventions they did not create" - true. also those with the means and inclination to chase patents rather than just create.

You avoid discussing my main topic, doubtless because I put it forward so poorly - that there are so many people inventing software things, in so many corners of the world, that there are bound to be some things invented simultaneously, and that the whole patent mechanism starts to crumble in such a set of circumstances.

If you accept that premise, and you may not, it then becomes tough to come up with any more satisfactory definition of your word "original" than "the person or organization who first files the patent".

That is, the person or organization who has lots of time, money, and lawyers to patent a compression algorithm or an image format or one-click purchasing or whatever, and to defend that patent vigorously once awarded.

Which is probably the same person or organization making use of public domain algorithms and code in other parts of its operations (like, for example, the wonderful corpus of public sorting algorithms, or hashing algorithms, or tree and list structures, or TCP/IP, or Linux, all of which could have been patented but weren't, none of which were obvious, and all of which benefit each and every one of us on a daily basis).

To quote the original post, "patents were meant to reward innovation - so the question is, 'how did we lose our way'".

You wrote: ... there are so many people inventing software things, in so many corners of the world, that there are bound to be some things invented simultaneously, and that the whole patent mechanism starts to crumble in such a set of circumstances.

Response: First, laws -- including patent laws -- are national in scope so your hypothetical "simultaneous invention" dilemma must be limited to the simultaneous invention of a particular invention in a particular country. It doesn't matter which one. The odds that a particular invention is "reduced to practice" [which is a term of art you should look up] by two different people on the very same day are so extraordinarily low they can be ignored. I challenge you to find any instance of true "simultaneous invention."

But let's assume it does happen. Are you sure you can argue with a straight face that because of this remote possibility the "whole patent mechanism starts to crumble"?

Laws are national in scope. That's not the point; in any case, it's too reductionist - organizations like WIPO exist to normalize IP laws so that IP owners can make profits from licensing their IP in other countries.

Rather, the points are as follows:

the global nature of invention in the software industry tests the abilities of any national patent process severely, as software components, subsystems, etc invented in India are very likely to end up incorporated in software used in the USA;

the convergence of the software industry (a lot of people in a lot of places working on similar problems), in my opinion at least, makes it quite likely there are examples of simultaneous invention;

the imprecise nature of date tracking in software development, except in the most formal practice, makes it hard to get a good handle on the precise moment of invention, especially if that handle doesn't seem important until five years after the moment of invention because of a patent dispute.

You edited my "crumble" comment a bit overmuch for my taste. What I can claim with a straight face, or a smile if you'd prefer, is

"that the whole patent mechanism starts to crumble in such a set of circumstances"

those circumstances being: global development of software, convergence on a similar problem set, and intrinsic difficulty establishing moment of "software invention".

You wrote: That's not the point; in any case, it's too reductionist - organizations like WIPO exist to normalize IP laws so that IP owners can make profits from licensing their IP in other countries.

Response: International efforts with regard to intellectual property law aim to do two things: attempt to harmonize the intellectual property laws of willing nations and attempt to establish procedural mechanisms for the efficient applications for registration of intellectual property rights in those willing nations.

What those efforts do NOT even attempt to do [nor should they] is to establish multinational intellectual property "rights" or multinational intellectual property rights enforcement. [The exceptions being the European Community trademark registration and the non-governmental Uniform Domain Name Dispute Resolution procedure].

Each nation's laws control the conduct of affairs within those nations. There are NO substantive international intellectual property laws. When licensing across borders, the parties decide which country's laws will govern.

It is, therefore, irrelevant from an intellectual property perspective that software is being developed throughout the world -- software inventions being no different or any more special than any of the countless other types of inventions being developed daily throughout the world. At the end of the day, all inventions are protected [or not protected] under the laws of the nation where the inventor is doing the inventing. Which, you'll be happy know, means that [under US law] a US inventor is not entitled to a US patent on a computer program if someone in India invented it first and published it for the world to see.

As for the circumstances that must all come together which, if they do, you believe will overwhelm our patent system, the odds are so remote that your argument can only be characterized charitably as fanciful. Sure, a dinosaur may hatch out of a chicken egg but it's the unwise farmer who spends resources in anticipation of the event.

"for the efficient applications for registration of intellectual property rights" = It should be easy to have something patented.

"irrelevant from an intellectual property perspective that software is being developed throughout the world" - No, because something that is patented in the USA can be seized at the border if imported. Soon also over the internet. In reality, ACTA and laws like it means that your laptop can be searched for patented software and that you can be forced to prove that you have paid for the licenses. Good luck if you're running Linux.

"software inventions being no different or any more special than any of the countless other types of inventions being developed daily throughout the world" - Wrong, because software is developed at a higher pace, cheaper and by enthusiats at home without the financial power of a company.

"means that [under US law] a US inventor is not entitled to a US patent on a computer program if someone in India invented it first and published it for the world to see." - You still have to prove that the other piece of software was first. In reality, that's not cheap or easy.

"As for the circumstances that must all come together which, if they do, you believe will overwhelm our patent system, the odds are so remote that your argument can only be characterized charitably as fanciful" - How many times do we have to mention patents like Amazon's one-click patent?

Are you arguing with me or agreeing with me? Does normalize = harmonize, or not?

I wrote: "". You wrote "those efforts to NOT even attempt to do is to establish multinational intellectual property rights".

With whom are you arguing there? I didn't say anything about establishing multinational intellectual property rights.

Your knowledge of the arcana of the US patent system appears to be exceeded only by your lack of knowledge, or perhaps willful ignorance, of the creative environment of software development:
* millions / tens? / hundreds? of millions of software developers,
* at all levels of skill, professionalism, and English competency,
* all working in a small handful of programming languages, each of which encourages a commonality of expression and a development methodology that enshrines sharing and re-use of others' ideas and code,
* on a relatively compact set of problems (how many apps available for Windows? how big is that app space, really, when competing apps are grouped together by functionality - 20,000?)

A fine and wonderful example of the kind of boondoggle that does [not can, Contrarian, but DOES] emerge from this is the whole MP3 patent mess. There is a nice description of this on Wikipedia (heavy with citations), following the technical overview.

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